April v. SOVEREIGN CONSTR. CO., LTD.

55 N.Y.2d 627 (1981)

Donald April, Plaintiff, v. Sovereign Construction Co., Ltd., et al., Defendants. Sovereign Construction Co., Ltd., et al., Third-Party Plaintiffs-Respondents, v. Wachtel, Dukauer and Fein, Inc., a Division of Warner Communications, Inc., Third-Party Defendant-Appellant.

Court of Appeals of the State of New York.

Argued October 12, 1981.

Decided November 17, 1981.

Richard Bakalor for third-party defendant-appellant.

Michael Majewski, Joseph D. Ahearn and Frank E. Maher for third-party plaintiffs-respondents.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*628MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The indemnity clause provided in part that third-party defendant Wachtel, Dukauer and Fein, Inc. (Wachtel), the subcontractor, would assume responsibility and liability for any and all injuries to any person, including the subcontractor's employees, for any damages "caused by or resulting from or arising out of any act or omission in connection with this Subcontract or the prosecution of work hereunder". Under the subcontract, Wachtel was responsible not only for plumbing installations but also for providing plumbing materials and unloading and distributing them at the worksite. It is undisputed that plaintiff was injured while distributing plumbing materials.

Because the plaintiff, an employee of the subcontractor, was injured in the prosecution of the work under the subcontract, the indemnity provision became controlling with respect to the responsibility and liability for the injury.

Order affirmed, with costs, in a memorandum.